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Parties shifting on rights of states

THE BALTIMORE SUN

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

- 10th amendment to the Constitution

The last of the amendments that make up the Bill of Rights is the foundation of a political cry long associated with conservatives.

"States' rights" has been evoked to oppose the growth in the authority of the federal government for several generations of American politics.

The cry was heard in opposition to the Civil Rights movement that called for federal court orders and legislation to force states to desegregate schools, buses and, eventually all public accommodations. The argument - based on the 10th amendment - was that because the Constitution didn't say anything about the federal government running schools or businesses, then those are the concern only of the states.

Now consider the fact that President Bush, who declares himself a conservative, is running for re-election promoting his "No Child Left Behind" act though it has the federal government telling the states all sorts of things about running their schools.

As the country goes into a presidential campaign, there are indications the states' rights banner may have switched to liberal hands on this and other issues from pot smoking to an person's right to die.

"No liberal can do it explicitly in those words without creating a backlash in certain portions of the Democratic Party," says William Galston, director of the Institute for Philosophy and Public Policy at the University of Maryland, College Park. "There are parts of the party that will resist the idea of states' rights in those terms as long as they live.

"But I think if the issue is framed differently then a Democrat should and will pick up the banner of states as the laboratory of democracy. That was a classic progressive era slogan that is just as good now as it was 100 years ago," he says.

Consider that the state of California decided to allow the medical use of marijuana but the Bush Justice Department under Attorney General John Ashcroft made a federal case out of it - prosecuting a man for growing marijuana though his acts were legal under the state law.

Ashcroft intervened in Oregon when that state decided to allow physicians to assist terminally ill patients who wanted to commit suicide.

Much of the legal drive behind regulating Wall Street has come from a state attorney general, Elliot Spitzer of New York, not the federal regulatory bodies.

California has long been ahead of the federal Environmental Protection Administration in restricting pollution, running afoul of the federal government in the Reagan administration. It provoked the ire of the current administration by trying to carry out tough standards over the small engines used in lawnmowers. The state, with the help of its new Republican governor, Arnold Schwarzenegger, eventually won that fight.

"At least since the 1980s, there has been a movement on the part of liberals - beginning with issues of the environment - in favor of states' rights and state autonomy," says Matthew Crenson, a professor of political science at the Johns Hopkins University.

Jack Fruchtman Jr., a political scientist at Towson University, says this has also been evident in the courts as Republican appointments changed the federal judiciary.

"As the federal courts got more conservative, liberals began looking to state courts to achieve their ends," Fruchtman says.

Crenson notes that the Reagan administration explicitly stepped on states' rights when it proposed not allowing states to adopt tougher pollution standards than those required by the federal government. It also used the prospect of withholding federal highway dollars to force states to rescind bans on double tractor-trailers. This trend continues with the current administration.

"In education, with No Child Left Behind, what they have done is create the most centralized education program since the Johnson administration," Crenson says.

Galston, who was a top domestic policy adviser in the Clinton administration, says the No Child Left Behind act will probably not be an issue in this year's campaign as it is the result of 15 years of bipartisan work.

"It is true that [it] enhances the reach of federal authority over public education, but on the other hand, many people in both parties came to believe that was the only way to break through the stagnation and induce states and localities to pay attention to a percent of the student population that was persistently neglected," he says.

It is on an issue such as gay marriage that you hear Democratic presidential hopefuls defending the rights of states - whether it is the civil unions that were signed into law by then-Vermont Gov. Howard Dean or the court ruling in Massachusetts that allows gay marriage on the basis of equal rights. The call for federal intervention in these state matters comes from conservatives calling for a constitutional amendment.

As a candidate for the Democratic nomination, Dean raised states' rights in the gun control debate, saying that a mainly rural state such as Vermont should have the right to different gun laws than a more urban state.

Though this was anathema to many Democrats who have long backed federal gun legislation, it also defies the position of gun control opponents that the Second Amendment gives federal protection to gun owners.

Galston, who notes that he backed federal gun control during his time in Washington, says the states' rights stance may provide a way out for Democrats on guns. "It could be a way of out-flanking an issue that has been politically catastrophic for Democrats."

If the Democrats do become the states' rights party - in deed, if not in word - and the Republicans stand in favor of centralized control, it would return the parties to their political roots.

The Democrats trace their heritage back to Thomas Jefferson, the founding father whose fear of central control was a cornerstone of his political thinking. The Republicans trace themselves to Abraham Lincoln, whose greatness was built on a war fought on the premise that the United States had primacy over the individual states.

"Throughout the 19th century, Republicans were in favor of big government because they were in favor of protectionism," Crenson says. "That meant they favored collecting a lot of protectionist tariffs." All that money collected by the federal government had to be spent on something, so it inevitably led to a bigger central administration.

Throughout that era, Crenson says, the progressives looked to the states for legislation on things such as pensions and labor rights and civil rights. "On the state level, there were a whole range of reforms not passed on the federal level."

Eventually, Crenson says, the same business interests that favored tariffs came to favor lower taxes and less regulation, leading them - and the Republicans - away from a big government stance. What clinched it was Roosevelt's New Deal.

"When Franklin Roosevelt took office in 1933, the state governments were incapable of dealing with the massive disruptions caused by the Depression," says Galston. "From the late 1930s, for two generations the prevailing political sentiment in the country was that the federal government ought to step in to do what the states couldn't or wouldn't do, first on economic policy, then on racial and a number of other issues."

The conservative opposition regained power in the 1980s. But, Crenson says, their return of power to the states did not lead to the expected results.

"They were operating on the assumption in American politics that is embodied in the phrase 'race to the bottom,'" he says. It was thought that if states were given power over regulations, they would loosen them - especially in the environmental areas - to attract business.

"But it didn't happen that way," Crenson says. States found their citizens - and their businesses - wanted a clean environment and often toughened those regulations. He says studies show the same thing happened with welfare expenditures when the federal government reduced its support.

"When the federal government stepped back, there was no race to the bottom," Crenson says, noting that the real growth in government since the Reagan era has been on the state level.

Without power in Washington, that's where Democrats have looked to push their agenda. Most likely, this is a matter of expediency, not ideology.

"Where you stand on this issue depends on where you sit," Galston says.

Mark Graber, professor of government and politics at the University of Maryland, College Park, agrees. "For most of American history, states' rights has been the claim of people who believe that they are more likely to win on the state level than the federal level," he says.

"Take two contemporary examples. With gay marriage, liberals do not have a chance to win on the national level, but on the state level, they get wins in Vermont and Massachusetts and tell the national government to stay out," he says.

"With Roe vs. Wade, conservatives talk about anti-abortion legislation on the state level because they don't have a chance on the national level."

Graber, who also teaches at Maryland's School of Law, says you can probably find some academics and a few politicians from both parties who have a real commitment to states' rights.

"But for the most part, all prefer national solutions when they can win nationally."

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